law

• natural law: moral facts as an essential component of what gives law its authority and legitimacy

  • moral responsibility to follow just laws, and to disobey unjust laws
• legal positivism: law is law; there is no necessary connection between law and morality

  • validity of legal norms is dependent on other norms, which is built on other norms, which is built upon the basic norm. If the basis for all our norms is just an assumption, than anything could be legal
  • based on authoratative issue and social efficacy
• law is a representation of a societys morality

  • legal positivism says it doesn't have to
• Radbrunch: positive law ceases to be valid if its departure from justice reaches an intolerable level. A law is no longer a law if there is not even an attempt to achieve justice

  • ie. mass genocide
• Natural law at fault for Nazi Germany?

  Law had a moral purpose in upholding their Aryan society; could override written law if they felt it was the moral thing to do
• (Kelson) pure theory of law: laws should be based off of basic norms. Treated law like a science, and saw morality as subjective

  • yet made strong moral arguments for why the Nazi's should be persecuted in Neuremburg Trials
  • its hard to decide how to retrocatively punish someone for following an evil law
• Hart: because law does not depend on morality, Nazi morality does not detract from its legal validity

  • the law is still a valid law but it's too evil to be obeyed
• Fuller: a legal system must have "internal morality" - the morality of the laws procedural structure.

  • argued that the Nazi legal system lacked morality because it violated his 8 criteria
  • ie. publicity, consistency, congruence: Hitler was the law (so all laws were secret in some sense), sound perception of the people